West v. State

MARVIN H. SMITH, Judge (retired), Specially Assigned. We shall here affirm convictions of first degree felony murder, robbery with a deadly weapon, robbery, use of a handgun in the commission of a felony, conspiracy to commit robbery with a deadly weapon, and conspiracy to commit robbery returned by a Prince George’s County jury against appellant, James Albert West (West or appellant). He was sentenced to life imprisonment for the felony murder conviction, twenty years consecutive for the use of a handgun in the commission of a felony, and twenty years concurrent for the conspiracy to commit robbery with a deadly weapon. The remaining convictions were merged.

Before this Court he contends: (1) The trial judge erred in denying the motion to suppress the statements taken by Detective Canales on January 30, 1997, and Detective Miller on February 5,1997; (2) The trial judge erred in concluding that there was no basis for submitting the charge of second degree murder to the jury because the co-defendant had already been convicted of first dégree felony murder; ¹⁵³ (3) The trial judge erred in excluding a statement made by West that should have been admitted as an excited utterance; and (4) The trial judge erred in refusing to admit an incriminating statement of Aaron Footes under the declaration against interest exception to the hearsay rule. We shall state such facts as are relevant to each of the contentions as we address them. I. The Motion to Suppress West was arrested on a warrant around 6:00 a.m. on January 30, 1997. He was placed in an interview room in the Criminal Investigation Division of the Prince George’s County Police Department at around 8:00 a.m. on that date.

An interview began with Detective Epperson at approximately 9:47 a.m. Epperson testified that he advised the accused of his rights and that West then signed a waiver and gave a statement. The admission into evidence of that statement is not challenged. That interview apparently concluded at approximately 1:30 p.m. on January 30,1997.

At approximately 3:49 p.m. on that same day, January 30, after first obtaining a second waiver of West’s Miranda rights, what is referred to as a “voice stress test” was administered by Detective Glen Clark. West, at that time, denied having been involved in the homicide at a K-Mart parking lot on December 31, the subject of this prosecution. He did admit, however, that he and a cohort were “out doing robberies that particular night.” Then, at 7:52 p.m. on January 30, Detective Ismael Canales began an interview vñth West. West’s brief refers to Canales as “the fifth officer to interview the Appellant that day.” Detective Canales stated that appellant admitted that he and Aaron Footes had gone out together with the purpose of robbing someone and that he was there as Footes’s “backup.” Canales testified: ¹⁵⁴ I then went into the question and answer session section which was, my first question was, what are you supposed to be doing while Aaron is out in the car?

And he says, set and waiting because I am his backup. What did you mean by Aaron didn’t do it? Aaron went to the pizza place and came back. He didn’t rob the pizza place.

The next question is: Were you aware that Aaron was going to rob the pizza place? Yes, I was were — that is aware — that Aaron was going to rob the pizza place. After he didn’t rob the pizza place, what were you driving Aaron around for? Riding Aaron around to rob somebody.

Next question: Why did you take Aaron to K-Mart? I take Aaron to K-Mart so he can go to buy something in the K-Mart. I know that he can possibly rob somebody. Knowing that he could rob someone, you were with him to do what?

To be his backup. When Aaron went to the right of the K-Mart front door, you knew that he was going to do what? When Aaron went to the right, he seen somebody and he robbed. How do you know this?

I heard — I hard [sic] a gun noise and Aaron ran to the car. West was again interrogated on February 5, 1997. Detective Miller testified that he questioned West on that day because he wanted to clarify some of the information previously provided by West. Miller said he had learned from Footes that West had shot the victim in the foot which contradicted West’s previous account of the murder in which he stated that he remained in the car the entire time and was not involved in the shooting.

When asked why he had gone to the K-Mart ¹⁵⁵ with Footes on the evening in question, West said that “he went there to find someone to rob.” West here contends that the January 30 statement to Canales and the February 5 statement to Miller “should have been suppressed because they were the product of repeated interrogations by five different police officers and by the improper influence of the voice stress test.” At the suppression hearing, the trial judge found the statements to have been voluntary. We look only to the record of the suppression hearing and do not consider the record of the trial in reviewing the denial of a motion to suppress. See Trusty v. State, 308 Md. 658, 670-71 , 521 A.2d 749, 751 (1987) (quoting Jackson v. State, 52 Md.App. 327 , 332 n. 5, 449 A.2d 438 , 441 n. 5, cert. denied, 294 Md. 652 (1982)). We are further limited to considering only those facts which are most favorable to the State as the prevailing party on the motion.

See Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240-41 (1990); see also Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22 (1990). In considering the evidence presented at the suppression hearing, “[w]e extend great deference to the fact finding of the suppression hearing judge with respect to determining the credibilities of contradicting witnesses and to weighing and determining first-level facts.” Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356, 358 (1990). “When the facts are in dispute, we accept them as found by the trial judge unless he is clearly erroneous in his judgment on the evidence before him.” Riddick, 319 Md. at 183 , 571 A.2d at 1240 . Even so, as to the ultimate conclusive fact of whether an action taken was proper, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. See id.; Perkins, 83 Md.App. at 346 , 574 A.2d at 358 .

With this in mind, we turn to the case before us. In making her ruling, the trial judge (Krauser, J.) found “no lack of voluntariness” in the statements made to the detectives and denied the motion. She explained, with regard to the statement on January 30, 1997, that the interrogations includ ¹⁵⁶ ed breaks and that “it was a very long day for him, but ... he had been provided meals and beverages throughout that period of time.” As to the statement on February 5, 1997, the judge observed that appellant was taken to the commissioner at about 1:00 a.m., then brought back to the County Detention Center the following night at about 6:00 p.m. The judge concluded that “the length of time in which West was back at the County Detention Center seem[ed to her to be] a sufficient interruption of the interrogation process that there [was] no undue coercion based on that delay____ All the statements given therefore [were] voluntary and there was no infringement on Mr. West’s rights.” The foundation for West’s contention is that the police exerted psychological coercion upon him, thus forcing him to involuntarily make statements.

Before further examining the circumstances of this case, we shall review the law concerning involuntary statements and coercion. The Supreme Court of the United States recognized in Spano v. New York, 360 U.S. 315, 321 , 79 S.Ct. 1202, 1206 , 3 L.Ed.2d 1265 (1959), that “the actions of police in obtaining confessions have come under scrutiny in a long series of cases.” In Spano , the Court recognized that the police are becoming increasingly sophisticated in extracting confessions. Id. The Court held that the confession there was involuntary, basing its decision on the fact that the defendant was a “foreign-born young man of 25[,] ... had progressed only one-half year into high school and ... had a history of emotional instability.” Id. at 321-22 & n. 3, 79 S.Ct. at 1206 & n. 3.

The Court further based its conclusion on the length of the interrogation of “eight straight hours.” Id. at 322 , 79 S.Ct. at 1207 . Looking at the totality of the circumstances, the Supreme Court concluded that the defendant’s “will was overborne by official pressure, fatigue and sympathy falsely aroused after considering all of the facts____” Id. at 323 , 79 S.Ct. at 1207 . In Hof v. State, 337 Md. 581 , 655 A.2d 370 (1995), Chief Judge Bell recently stated for the Court that “[u]nder Maryland’s common law, a confession is presumptively inadmissible ¹⁵⁷ ‘unless it is “shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary.” ’ ” Id. at 595 , 655 A.2d at 377 (citing cases). He further stated for the Court, referring to Nicholson v. State, 38 Md. 140, 153 (1873), that “almost a century before Miranda ” the Court of Appeals stated: “[I]t is very clear upon all the authorities, that if the confession of the appellant had been induced by any threat of harm, or promise of worldly advantage held out to him ..., it ought to be excluded.” Id.

The Court next stated, citing cases, “[I]n determining whether a confession is plagued with any ‘coercive barnacles’, the standard ... is whether, under the totality of all the circumstances, the statement was given freely and voluntarily.” Id. The Court explained that the totality test consists of a number of factors, including: where the interrogation was conducted; its length; who was present; how it was conducted; its content; whether the defendant was given Miranda warnings; the mental and physical condition of the defendant; the age, background, experience, education, character, and intelligence of the defendant; when the defendant was taken before a court commissioner following arrest; and whether the defendant was physically mistreated, physically intimidated or psychologically pressured. Id. at 596-97, 655 A.2d at 377-78 (citations omitted). This Court has also addressed the admissibility of a statement.

In State v. Hill, 2 Md.App. 594, 600-01 , 236 A.2d 27, 30 (1967), Chief Judge Robert C. Murphy noted for this Court that “the standard by which the admissibility of [the defendant’s] ... statement is to be measured is whether, under the totality of all the attendant circumstances, the statement was given freely and voluntarily.” The Court interpreted that test as follows: More specifically, the constitutional inquiry is not whether the conduct of the officers ... was shocking, but whether his confession was free and voluntary, viz., whether it was extracted by any sort of threats, or violence, or obtained by any direct or implied promises, however slight, or by the ¹⁵⁸ exertion of any improper influence. Otherwise stated, the test of the admissibility ... is whether his will was overborne at the time he confessed; or whether his confession was the product of a rational intellect and a free will; or whether his statement was ‘freely self-determined!)]’ So that, as succinctly stated by the Court of Appeals ... the question is not whether the accused was frightened, but whether his disclosures to the officers were freely and voluntarily made at a time when he knew and understood what he was saying. Id. at 601-03 , 236 A.2d at 30-31 (citations omitted). Appellant also contends that the use of the results from the voice stress test contributed to the coercion.

Citing Johnson v. State, 31 Md.App. 303 , 355 A.2d 504 (1976), he contends that “the use of ‘truthfulness’ tests such as voice stress tests and lie detector tests have the potential to improperly coerce a confession!)]” While this Court did note, with reference to the contentions relative to a polygraph or “lie detector,” that “the use of the deception testing device was intended to produce a psychological effect upon the accused in order to obtain the relevant facts[,] ...” it further stated that “the use of such a procedure for that purpose would not as a matter of law require the exclusion of a confession so obtained!)]” Id. at 305 , 355 A.2d at 506 . In the instant case, as the trial judge noted, there was no continuous badgering by the police. The cases cited by appellant are inapposite to the instant case because they contain egregious and extreme circumstances where a person’s will was overborne by aggressive police tactics. We view the totality of circumstances in the present case in making our independent judgment.

Including the use of the results from the voice stress test, there is no suggestion in the record that appellant’s will was overborne. No requests went unhonored. There were no inducements, promises, or threats. Clearly, there was no physical coercion.

This is simply a case of a sheer passage of time with repeated questioning which is ¹⁵⁹ essential to the majority of interviews. The trial court did not err in concluding that the statement was voluntary.

II

Submission of Second-Degree Murder to the Jury In Clark v. State, 80 Md.App. 405 , 564 A.2d 90 (1989), Judge Robert M. Bell stated for this Court that a trial judge must instruct the jury on a matter which is a proper subject for instructions where a timely request has been made even though that request is not totally accurate and may contain some erroneous material. To hold otherwise would be to place on the parties the responsibility for determining what the law is, a responsibility which is properly entrusted to the court. Id. at 412 , 564 A.2d at 94 (citing cases). Maryland Rule 8-131 (a) states that our appellate courts will not decide an issue “unless it plainly appears by the record to have been raised in or decided by the trial court.... ” Rule 4-325(c) provides in pertinent part, “An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.” In State v. Hutchinson, 287 Md. 198 , 411 A.2d 1035 (1980), Judge Cole was dealing for the Court with then Rule 757(h) when he made plain that whether to review an issue not raised and decided below is discretionary with the appellate court.

He said for the Court: The rule clearly anticipates circumstances giving rise to error which may justify an appellate court’s intervention. However, the discretion conferred by § h is not exercised as a matter of course. It presupposes some inquiry by the reviewing court to determine whether the error is material to the rights of the accused, i.e., vitally affecting his right to a fair and impartial trial. While we do not propose to set forth any fixed formula for determining when discretion should be exercised, we do ¹⁶⁰ expect that the appellate court would review the materiality of the error in the context in which it arose, giving due regard to whether the error was purely technical, the product of conscious design or trial tactics or the result of bald inattention.

We enumerate these factors because we feel they are ordinarily inconsistent with circumstances justifying an appellate court’s intervention under § h. In our cases we have characterized instances when an appellate court should take cognizance of unobjected to error as compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial. Id. at 202-03, 411 A.2d at 1038 . On instructions, Judge Eldridge said for the Court in Johnson v. State, 303 Md. 487 , 495 A.2d 1 , cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986): A party is generally entitled to have his theory of the case presented to the jury through a requested instruction if that theory is a correct exposition of the law and there is evidence in the case which supports it.

Smith v. State, 302 Md. 175, 179 , 486 A.2d 196, 198 (1985); Sergeant Co. v. Pickett, 285 Md. 186, 194 , 401 A.2d 651, 655 (1979); Levine v. Rendler, 272 Md. 1, 13 , 320 A.2d 258, 265 (1974). The test for whether an instruction was proper has two aspects: (1) whether the instruction correctly states the law, and (2) whether the law is applicable in light, of the evidence before the jury. Sergeant Co., supra, 285 Md. at 194 , 401 A.2d at 655 . If the test is met, the instruction must be given.

Smith, supra, 302 Md. at 179-80 , 486 A.2d at 198 . Id. at 512, 495 A.2d at 13 (emphasis in original). In Johnson v. State, 310 Md. 681 , 531 A.2d 675 (1987), Judge Eldridge said for the Court: Although the trial court’s failure to give a requested instruction may constitute error, the rules go on to indicate that such error is ordinarily not preserved for appellate review unless the requesting party objects after the trial court instructs the jury. Rule 4-325(e) provides in pertinent part that “[n]o party may assign as error ... the failure to give ¹⁶¹ an instruction unless the party objects on the record promptly after the court instructs the jury____” The language of the rule plainly requires an objection after the instructions are given, even though a prior request for an instruction was made and refused.

Id. at 686 , 531 A.2d at 677 . In this case, appellant failed to request a second-degree murder jury instruction or make an objection to the jury instructions offered by the court. After reviewing the instructions at the bench, the following was said: [THE COURT:] All right. All set?

That’s it. All right. Any exceptions? Just so it is clear, no exceptions to the instruction? [DEFENSE COUNSEL:] Not at this point. [ASSISTANT STATE’S ATTORNEY:] No, Your honor. [THE COURT:] No exceptions.

After the trial judge instructed